from the United States District Court for the Middl District
of Alabama D.C. Docket No. 3:15-cr-00115-JFD-CSC-1
WILLIAM PRYOR, JORDAN, and RIPPLE, [*] Circuit Judges.
WILLIAM PRYOR, Circuit Judge
appeal requires us to determine whether the bar against
reassigning a case to a new judge "[a]fter a verdict or
finding of guilty" unless the "judge who presided
at trial" is absent or disabled, Fed. R. Crim.
P. 25(b)(1) (emphasis added), applies where a defendant
pleaded guilty. After a police officer stopped Roger
McCullough for driving with a partially obscured license
plate, the officer arrested McCullough for possession of
marijuana. McCullough pleaded guilty to several drug and
firearm charges, and the district court reassigned the case
to a new judge for sentencing. McCullough argues that the
reassignment was unlawful because the judge initially
assigned to the case was neither absent nor disabled.
See Fed. R. Crim. P. 25(b)(1). But the text of Rule
25 makes clear that the rule does not apply where a defendant
pleaded guilty. We also reject McCullough's arguments
that the traffic stop was unlawful, that the district court
should have reassigned the case back to the initial judge,
and that the district court committed procedural and
substantive error when it sentenced McCullough. We affirm.
McCullough drove along the highway one evening in his late
father's truck when a police officer stationed on the
side of the road used a machine to read the license plate on
the truck. The machine interprets alphanumeric symbols on
license plates and constructs an image of the plate. It then
cross-references those symbols against a database to search
for, among other things, stolen vehicles and Amber alerts.
The truck was outfitted with an Alabama license plate that
read "God Bless America." A bracket in the shape of
an eagle with outstretched wings obscured parts of the
license plate, including the invocation and the state of
law provides that "[e]very motor vehicle operator . . .
shall at all times keep attached and plainly visible
on the rear end of such motor vehicle a license tag or
license plate." Ala. Code § 32-6-51 (emphasis
added). The officer turned on his lights to stop McCullough
because the officer believed McCullough had violated this
provision by driving with the eagle bracket. McCullough
refused to stop for several miles. When McCullough finally
did stop, the officer detained McCullough for safety reasons.
The officer also wrote McCullough tickets for failing to have
a plainly visible license plate and for failing to yield to
an emergency vehicle.
situation worsened when the officer smelled marijuana wafting
from the truck. The officer searched the truck and discovered
$8, 335 and a substance the officer believed was marijuana.
The officer arrested McCullough, searched him, and seized
from his person more than $4, 000 and a key to a hotel room.
Police obtained a warrant to search the hotel room. The room
contained several plastic bags, more than $1, 000, three
gallon-size bags filled with what the police believed was
marijuana, weighing scales, a marijuana grinder, multiple
phones, and a handgun.
McCullough was arrested, he was already on supervised release
from a previous conviction. His criminal history included
three convictions for possession of controlled
substances-twice for cocaine, once for marijuana-one
conviction for possession with the intent to distribute
marijuana, and several assaults. For violating his supervised
release, McCullough was sentenced after his arrest to four
months of time served. McCullough was given a new term of
supervised release, which included twenty months of residence
at Fellowship House in Birmingham, obtaining employment, and
participating in a substance abuse program.
after, a grand jury returned an indictment against McCullough
for possession with intent to distribute marijuana, 21 U.S.C.
§ 841(a)(1), possession of a firearm in furtherance of a
drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), and
being a felon in possession of a firearm, 18 U.S.C. §
922(g)(1). McCullough moved to suppress the evidence on the
ground that the officer lacked probable cause or reasonable
suspicion to stop him for partly obscuring the license plate
because Alabama law required only that alphanumeric symbols
be visible, not the full license plate. The district court
denied the motion because it determined that a reasonable
officer could have believed that McCullough violated Alabama
law and that the arrest and search were justified. McCullough
then pleaded guilty to each count before a magistrate judge.
sentencing, the probation officer calculated a guideline
range of 262- 327 months that accounted for, among other
factors, McCullough's status as a career offender with a
career history category of VI and a consecutive mandatory
minimum of five years for being a felon in possession of a
firearm. McCullough objected and filed a motion for a
downward variance that requested a sentence between 117 and
131 months. McCullough argued that his case was similar to
Pepper v. United States, where the Supreme Court
permitted a district court to consider post-sentencing
rehabilitation after an appellate court had vacated and
remanded the defendant's initial sentence. 562 U.S. 476,
490 (2011). McCullough argued that the district court should
take into account that, among other things, he had moved into
the Fellowship House and had obtained employment since his
most recent release from incarceration. He also maintained
that marijuana is less serious relative to other controlled
substances, so the guideline range was disproportionate to
district court reassigned the case to a new judge for
sentencing. McCullough argued that that the reassignment
violated Federal Rule of Criminal Procedure 25, which
provides that a district court may reassign a matter to a new
judge if "[a]fter a verdict or finding of guilty, . . .
the judge who presided at trial cannot perform those duties
because of absence, death, sickness, or other
disability." Rule 25(b)(1). He also moved the district
court to reassign the case back to the initial judge, whom he
contended was more familiar with the facts.
sentencing hearing, McCullough notified the district court
that the motion for reassignment remained pending. The
district court stated that it had not seen the motion. After
reading the motion, the district court ruled that Rule 25 did
not apply to defendants who, like McCullough, pleaded guilty.
The district court also expressed surprise that a magistrate
judge, not a district judge, had accepted the plea. The
district court stated that it had read and considered all the
letters McCullough submitted. Although the district court had
not read Pepper, both parties stated the holding and
made arguments as to its application. The district court
reviewed each letter McCullough submitted and determined that
the letters provided some evidence of lifestyle change ...